This article is written by Radhika Ghosh, from Hidayatullah National Law University (HNLU). The article discusses the scenario of privacy rights available to AIDS patients in India.
Acquired Immune Deficiency Syndrome (AIDS) is a serious disease whose cure has not yet been discovered, however, it can be prevented. With the misconception of it being a communicable disease, society ostracizes AIDS patients with different kinds of stigmas. Sometimes, even family members and blood relatives corner the patients. Every human being has some unalienated rights and so do AIDS patients. Just because someone acquires a disease, it does not imply that he/she cannot enjoy that right. Even the Supreme Court justifies the rights of AIDS patients through landmark judgements.
In the case of Mr. ‘X’ v. Hospital ‘Z’, the Supreme Court talks about the various rights of AIDS patients from various perspectives. The main issues that were dealt by the court were whether (i) right to marry is an absolute right, (ii) AIDS patients have a right to marry and right to privacy, (iii) the right to health takes precedence over the right to privacy, (iv) Medical practitioners have an obligation not to disclose the AIDS disease and identity of the patient, etc. The issues on privacy were dealt with in detail in other landmark judgments like Justice K.S. Puttaswamy and Ors. Vs. Union of India (UOI) and Ors.
Challenges faced by AIDS patients
Stigma and discrimination
Even though the government has enacted and implemented various preventive measures and laws regarding AIDS patients, they still suffer a huge amount of discrimination every day. In 2006, a report demonstrated that one out of every three AIDS patients has suffered from extreme forms of discrimination in various walks of life. The same ratio was mirrored in a 2016 report as well. Hence, it could be established that the laws and policies are not working in the way they should, therefore, creating a barrier.
Stigmatization and discrimination are very common within the healthcare sector. In 2013, a study among doctors, medical and hospital ward staff in government and non-government clinics in metropolitan cities like Mumbai and Bengaluru found that one attitude and attribute that was common towards the people affected with AIDS was the denial of providing a place to stay, especially women having children. This denial encouraged the mandatory testing for female sex workers and surgery patients, and blatantly accusing them that they deserved the syndrome as it came to them through sexual intercourse and drugs.
Many studies have shown that HIV-positive people are so stigmatized that they delay treatments or tests in the fear that they might turn positive of the infection. The stigma is so prevalent that it at times leads to missing appointments with doctors, non-adherence to the prescribed methods of treatment, delay in updating the prescription, and so on.
Gender inequality is also a major challenge. Rural women have very little control over important health issues. Moreover, due to the power play between the husband and the wife, one out of every five women face domestic violence and other cruelty in their home. Hence, convincing the husband to wear a condom becomes a challenge for most of them. A condom can prevent the spread of HIV infection through sexual intercourse. Due to the fear of discrimination, women also delay their regular healthcare and hospital visits. Women, more than men, fear being discriminated against and tabooed from society as a result of the infection because of their low social and economic standing.
India also reports having one of the largest numbers of children orphaned because of AIDS. These children face stigma and an impenetrable barrier in many Indian societies. Enrollment in schools and other development programs becomes very difficult for them. Due to this, it practically encourages the families of these children to shy away from the report lists, and availing the necessary treatments becomes increasingly difficult.
Due to a lack of unique patient identifier records, different monitoring and reporting systems used within facilities become incapable of tracking people through the prevalent system in order to provide treatment.
The national need in order to develop and research drugs for HIV infection is to collect medical data of the patients in a systemized and proper way, which does not happen otherwise. This is due to a lack of high-quality data systems that limit the availability of data that can be used for research. In addition to case-based reporting, there lies a substandard structure, and sometimes the population size estimates are outdated, and inadequately trained staff to monitor the epidemic.
Structural and resource barriers
In recent years, there has been a decrease, if not a shortfall in the procurement, management, and distribution of Antiretroviral treatments (ARVs), HIV testing kits, and other HIV commodities, mainly due to supply chain bottlenecks. Even during this pandemic the supply and access of the testing kits and medical attention has seen an abrupt stop in many areas.
Regulating laws to protect AIDS patients in India
Even though there is no robust and comprehensive legislation on HIV/AIDS patients, there are certain basic laws for the protection and welfare of patients, some of them are mentioned below.
The Constitution of India
The Constitution of India, 1950, which is the law of the land guarantees every citizen equal and unbiased justice, liberty, and equality. The following rights are guaranteed to AIDS patients under various provisions of the Constitution.
- Article 14 of the Constitution guarantees the right of equality to every person which includes treatment for HIV/AIDS patients.
- Articles 15 and 16 protect patients against any forms of discrimination.
- Article 21 of the Constitution protects their right to life and personal liberty which also includes their right to privacy.
- The Directive Principles of State Policy lays down certain duties of the states towards AIDS patients. Article 38 and 39 talks about the duty of the state to promote social welfare and secure them with social and economic resources respectively. However, these duties are not enforceable in the courts of law.
- Article 39 of the Constitution asks the states to ensure all the citizens including the HIV/AIDS patients have an adequate means of livelihood.
- Article 42 lays down a duty upon states to make provisions for securing just and humane conditions of work.
Indian Medical Council Act, 1956 (Professional Conduct, & Ethics) Regulations, 2002
The Medical Council of India entrusts upon certain duties that have to be observed by the doctors towards HIV/AIDS patients in Indian Medical Council Act, 1956 (Professional Conduct, & Ethics) Regulations, 2002. These are given as follows:
- Duty to take care and informed consent from the patient before attending to any medical procedure.
- Duty to disclose to the patient the risk associated with the treatment.
- Duty to inform about options available and their benefits.
- Duty to warn the patient of the harm and precautions.
- Duty to admit a patient in an emergency without consent.
- The duty of the physician to not abandon his patient for fear of contracting the disease himself.
Immoral Trafficking Prevention Act, 1986
Immoral Trafficking Prevention Act, 1986 deals with sex workers and work-related issues in India. The Act lays down the provision of conducting compulsory medical examinations for the detection of HIV/AIDS. It also states provisions for compulsory testing of the same.
HIV/AIDS Bill, 2007
This Bill is a joint initiative of the government and civil society. It mainly deals with the status and protection of HIV/AIDS patients in all spheres, be it in their domestic spaces or in society. It makes sure that equal rights and opportunities are provided to all of the patients. The Bill aims at providing equal and unbiased opportunities in the areas of education, employment, travel, insurance, healthcare, residence and property, and so on.
The Bill asks for voluntary, free, and informed consent from the patients before their medical history or information is collected and used for research purposes. On the counterpart, the AIDs patients are also imposed with the duty to not spread the disease further through potential means. Hence the Bill confirms the confidentiality clause, but in necessary circumstances, the information or medical history of the patients can be revealed. AIDS patients have access to robust and universal access therapies for prevention, care, and support. The Bill protects risk-reduction strategies from civil and criminal liabilities, as well as harassment by law enforcement. This Bill also provides provisions related to the right to information and education relating to health and the protection of health from the State. It lays special focus on women and children. The bill requires the state to implement IEC programs that are evidence-based, age-appropriate, gender-sensitive, non-stigmatizing, and non-discriminatory.
The Bill has provision for the appointment of a health ombudsman in every district so that easy and quick access to health services could be provided to all persons. Redressal of complaints and a platform to internal complaint mechanisms are also provided. There are fast-track courts that deal with the complaints at a much faster rate and provide creative redressals. The Bill also establishes a link between sexual violence and the victims being prone to the disease more than others, hence it provides for counseling and treatments for sexual assault survivors and asks the states for the setting up of sexual assault crisis centers. It also recognizes certain rights for children and women who are in care homes, and dormitories, as due to their social, and economic conditions they find themselves more prone to AIDS.
Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill, 2010
Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill, 2010 contains stringent provisions to curb discrimination against HIV/AIDS patients. The Act penalizes the act of discriminating against any person infected with AIDS. It also punishes people who disseminate such information about the patient which would lead to propagating hatred against the infected person.
According to the proposed bill, the screening process or testing could not be an essential requirement for any kind of employment. Even the patients could not be denied access to public places, education, or any form of enjoyment due to the same reason. Even in the workplace, proper measures must be taken in order to make a healthy and non-discriminatory space for the patients to work.
The Bill also makes a safeguard provision against a minor who hasn’t attained the age of 18 years and any women who are evicted, and they possess the right to live in a shared property. In the aim of deterring rampant victimization of HIV/AIDS patients, the medical costs would be taken into consideration when settlement for maintenance is calculated.
The Bill also says that no one can be forced to take an HIV test. Proper counseling must be accompanied by detailing out the pros and cons before that person goes into the stage of making the choice. The consent must be taken voluntarily, and it must be informed. Under no circumstance can a patient be asked to reveal his status, with an exception of the courts asking to do so.
National Policy on HIV/AIDS and the “World of Work” Policy
The Ministry of Labor & Employment has formulated the “World of Work” and the “National Policy on HIV/AIDS” at the 43rd Session of the Standing Labor Committee. This Policy was developed by the Ministry of Labor & Employment after consultations with ILO (International Labor Organization), NACO (National Aids Control Organization), and Social partners. The policy aims at creating awareness about AIDS alongside working on encouraging actions in order to prevent the spread of AIDS. It also aims to make the workplace supportive and encouraging of suffering patients. The objective of the policy is to curb the stigmas involved with this whole disease and bring in an atmosphere of equal treatment and opportunities at the workplace. It aims to create an open space for the victims of these social stigmas and discriminations and prevent the spread of HIV amongst co-workers and make people aware of the issues regarding the same.
Persons with HIV infection can work as long as they are fit. If there is a test conducted, the person can wish to remain anonymous throughout the process. A special, written and informed consent is required when the research centers come in to collect the medical reports of those patients. No other than professional nurses and qualified authorities can conduct the tests and perform research on them.
The other legislation, policies, and agencies that protect HIV/AIDS patients
- Antiviral Therapy Guidelines for HIV-infected Adults and Adolescents including Post-exposure.
- Condom Promotion by SACS – Operational Guidelines.
- Data Sharing Guidelines for HIV Care and Treatment in Infants and Children, Nov 2006.
- Drugs and Cosmetic Act, 1940.
- Goa, Daman, Diu Public Health Act, 1985.
- Guidelines for HIV Testing, March 2007.
- Guidelines for Network of Indian Institutions for HIV/AIDS Research (NIHAR).
- Guidelines for Prevention and Management of Common Opportunistic Infections.
- Guidelines for Setting up Blood Storage Centres.
- ILO Code of Practice on HIV/AIDS and the World of Work.
- Indian Penal Code, 1860.
- Joint Statement of Commitment on HIV/AIDS of the Central Trade Unions in India.
- Juvenile Justice (Care and Protection of Children) Act, 2000 and 2006.
- Link Worker Scheme(LWS) Operational Guidelines.
- Maharashtra Protection of Commercial Sex Workers, Bill, 1994.
- Medical Termination of Pregnancy Act, 1971.
- NACO Ethical Guidelines for Operational Research.
- NACO IEC Operational Guidelines.
- NACO Research Fellowship-Scheme Under NACP-III.
- Narcotic Drugs and Psychotropic Substances Act, 1985.
- National AIDS Control and Prevention Policy (NACPC).
- National AIDS Control Organization (NACO), Department of AIDS Control, Policies and Guidelines.
- National AIDS Prevention and Control Policy.
- National Blood Policy (NIHFW)National AIDS Control Programme (NIHFW).
- National Guidelines on Prevention, Management & .Control of Reproductive Tract Infection
- National Guidelines on Prevention, Management & Control of RTI including STI.
- National Human Rights Commission.
- National Policy on HIV/AIDS and the World of Work.
- Procurement Manual for National AIDS Control Programme (NACP-III).
- Standards for Blood Banks and Blood Transfusion Services.
- State AIDS Control Societies.
- Suppression of Immoral Traffic in Women and Girls Act, 1956.
- Surveillance Operational Guidelines Targeted Intervention for Migrants – Operational Guidelines Targeted Interventions for High-Risk Groups (HRGs).
- Targeted Interventions for Truckers – Operational GuidelinesVoluntary Blood Donation – An Operational Guidelines.
- The Indian Employers’ Statement of Commitment on HIV/AIDS.
- Young Persons (Harmful Publications) Act, 1956.
Legal provisions in international conventions
The United Nations Declaration of Human Rights
The United Nations, with time, has come up with a lot of steps in order to provide equality and human rights to all individuals including AIDS patients. The United Nations Declaration of Human Rights provides the right to equality to all human beings including AIDs patients. It also lays down certain provisions dealing with equal opportunity of work, personal liberty, opportunity, and security. Various conventions aim at eliminating discrimination and stigmas related to patients’ rights, especially AIDS. Everyone including HIV positive persons has the right to work and take part in the cultural and social life in the community, and be able to enjoy art and share scientific advancement. UN conventions time and again have objectively worked on all persons including the AIDS patients to be treated equally before the law and are entitled to equal protection by the law. The International Community is always searching for various measures in order to protect HIV/AIDS persons. This lays down the fact that not only in India but also in various other countries AIDS patients find it hard to avail themselves of the same rights and opportunities.
The Joint United Nations Programme on HIV/AIDS (UNAIDS)
The guidelines provided by The Joint United Nations Programme on HIV/AIDS (UNAIDS) have provided all the grounds on which rights of HIV-affected people are recognized. But certain factors must be considered after all these efforts like that of penalized people and sex workers who inject themselves with drugs, criminalizing acts like men having sexual intercourse with other men (MSM), or transgender people. It also drives them away from health and social services that could protect them because they fear criminal sanctions. It also lends legitimacy to discrimination and social stigmas that increase risk-taking behavior because they are usually more prone to be victims of sexual violence those tabooed populations will hesitate in accessing justice systems because of the fear of being prosecuted and being discriminated against while appointing them in jobs. Hence, it defeats the whole purpose of the policy as people are already stigmatized or hesitant to interact. or come under the umbrellas of policymakers to design workable HIV programs. Therefore, it could be established that marginalizing or criminalizing the conduct of the vulnerable stakeholders not only violates their human rights but also deteriorates their health but presses the bigger purpose of the conventions and enactments. An overview of all the Rights available to AIDS patients.
Legal provisions under Indian law- Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (Prevention and Control) Act, 2017
The Indian Parliament has passed the Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (Prevention and Control) Act, 2017 that recognizes and talks about the rights of HIV/AIDS persons. This Act establishes antiretroviral therapy as a legal right of HIV/AIDS patients and states that “every person in the care and custody of the state shall have right to HIV prevention, testing, treatment, and counseling services.” This act also asks the states to provide treatment that shall be accessible and with management centers. It also talks about measures that could be taken by the states to curb the issue of stigmatization of the stakeholders as explained in the following points.
I) Right to Treatment
This Act provides a special right to HIV/AIDS persons regarding treatment. This Act, in addition to providing treatment, specifies the treatment of Antiretroviral Therapy (ART) and holds governments accountable for providing it. The following provisions are crucial in this regard.
- Section 13 states that the Central Government and State Government, as the case may be, shall take all such measures as it deems necessary and crucial for the prevention of the spread of HIV infection or AIDS in accordance with the guidelines.
- Section 14 states that the measures to be taken by the Central Government or the State Government under section 13 shall include the measures for providing, as far as possible, diagnostic facilities relating to HIV or AIDS, Antiretroviral Therapy, and Opportunistic Infection Management to patients living with HIV or AIDS. Further, the Central Government shall issue necessary guidelines in respect of protocols for HIV and AIDS relating to diagnostic facilities, Antiretroviral Therapy, and Opportunistic Infection Management which shall apply to all persons and shall ensure their wide dissemination.
According to Section 8 of the Act, Notwithstanding anything contained in any other law for the time being in force:
(i) No person shall be compelled to disclose his HIV status except by an order of the court that the disclosure of such information is necessary for the interest of justice for the determination of issues in the matter before it;
(ii) No person shall disclose or be compelled to disclose the HIV status or any other private information of another person imparted in confidence or in a relationship of a fiduciary nature, except with the informed consent of that other person or a representative of such another person obtained in the manner as specified in Section 5, as the case may be, and the fact of such consent has been recorded in writing by the person making such disclosure:
Provided that, in case of a relationship of a fiduciary nature, informed consent shall be recorded in writing.
(2)The informed consent for disclosure of HIV-related information under clause (ii) of subsection (1) is not required where the disclosure is made:
(a) by a healthcare provider to another healthcare provider who is involved in the care, treatment, or counseling of such person, when such disclosure is necessary to provide care or treatment to that person;
(b) by an order of a court that the disclosure of such information is necessary for the interest of justice for the determination of issues and in the matter before it;
(c) in suits or legal proceedings between persons, where the disclosure of such information is necessary for filing suits or legal proceedings or for instructing their counsel;
3) Right against discrimination and Right to Employment
Section 3 of the Act provides that no person shall discriminate against the protected person on any ground including any of the following, namely:
(a) the denial of, or termination from, employment or occupation, unless, in the case of termination, the person, who is otherwise qualified, is furnished with-
(i) a copy of the written assessment of a qualified and independent healthcare provider competent to do so that such protected person poses a significant risk of transmission of HIV to another person in the workplace, or is unfit to perform the duties of the job; and
(ii) a copy of a written statement by the employer stating the nature and extent of administrative or financial hardship for not providing him reasonable accommodation;
(b) the unfair treatment in, or in relation to, employment or occupation;
(c) the denial or discontinuation of, or, unfair treatment in, healthcare services;
(d) the denial or discontinuation of, or unfair treatment in, educational, establishments and services thereof;
e) the denial or discontinuation of, or unfair treatment with regard to, access to, or provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public, whether or not for a fee, including shops, public restaurants, hotels and places of public entertainment or the use of wells, tanks, bathing ghats, roads, burial grounds or funeral ceremonies and places of public resort;
(f) the denial, or, discontinuation of, or unfair treatment with regard to, the right of movement;
(g) the denial or discontinuation of, or, unfair treatment with regard to, the right to reside, purchase, rent, or otherwise occupy, any property;
(h) the denial or discontinuation of, or, unfair treatment in, the opportunity to stand for, or, hold public or private office;
(i) the denial of access to, removal from, or unfair treatment in, Government or private establishment in whose care or custody a person may be;
(j) the denial of, or unfair treatment in, the provision of insurance unless supported by actuarial studies;
(k) the isolation or segregation of a protected person;
(l) HIV testing as a prerequisite for obtaining employment, or accessing healthcare services or education or, for the continuation of the same or, for accessing or using any other service or facility:
Provided that, in case of failure to furnish the written assessment under subclause (i) of clause (a), it shall be presumed that there is no significant risk and that the person is fit to perform the duties of the job, as the case may be, and in case of the failure to furnish the written statement under sub-clause (ii) of that clause, it shall be presumed that there is no such undue administrative or financial hardship.
Evolution of right to privacy in India
Regardless of the fact that India passed and implemented the Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (Prevention and Control) Act, 2017 which makes provisions about keeping the patient’s history confidential, however, it is through the landmark judgments that India recognized the right to privacy. Earlier in the cases of Kharak Singh v. the State of U.P, Gobind v. State of M. P., Malak Singh v. State of Punjab & Haryana, and the Auto Shankar the court did identify the right to privacy emanating from Article 21 of the Constitution of India, little was talked about the implementation and challenges. In this section, we further analyze the landmark cases that gave the right of privacy to AIDS patients.
MR. ‘X’ versus Hospital ‘Z’ case
In this case, the appellant Mr X was a doctor by profession and worked with the State government of Nagaland as a surgeon. As a part of his duty, he was asked to accompany a patient suffering from an ‘aortic aneurysm’ to Hospital ‘Z’ in Madras. Initially, the patient’s operation was postponed because of the shortage of required blood. Blood was arranged from Mr X and his driver. On the following day, the operation was conducted and it was successful. Ten days later the hospital discharged the patient.
After the appellant came back to Nagaland, his marriage was set up with Ms Y. Eventually, the marriage was delayed; it was reported that the blood collected from Mr X by the hospital in Madras was HIV positive. He went back to the hospital to conduct various other tests to confirm the report. The marriage was eventually called off when the medical test results showed that the blood was HIV positive. The news spread like wildfire amongst the families of both of the parties to the marriage. The man was stigmatized and the community to which he belonged ostracized him from society. Being unable to bear all this, he had to leave Nagaland and settle down in Madras.
The Supreme Court has extensively dealt with the above issues and also other related issues, with the help of many international conventions, statutory provisions, and decided cases. The duty of doctors to maintain confidentiality in AIDS cases was added. The court also recognized that the right to privacy is a fundamental right and that persons in the medical profession have to maintain confidentiality. The court referred to: (i) Hippocratic Oath administered to doctors; (ii) covenant to maintain secrecy and confidentiality in the International Code of Medical Ethics and the laws relevant in India.
Section 20-A of the Indian Medical Council Act 1956 empowers the Indian Medical Council to prescribe standards of professional conduct, etiquette, and a code of ethics for medical practitioners. Also, section 33 of the Act empowers the council to make regulations, providing inter alia for standards of professional conduct and etiquette of the code of ethics to be observed by medical practitioners. Under these provisions, the code of medical ethics that was drafted by the Indian Medical Council states that doctors are bound to keep the patient’s secret. And it is only before the orders of the judge in a court of law that he/she is allowed to present those. Based on this provision, it was argued before the Supreme Court that the patient’s right to privacy is a correlative right on the doctor to maintain secrecy.
However, the court after going through the entire ground of facts and law referred to the guidelines on HIV infection and AIDS issued by the General Medical Council of Great Britain which inter alia, provide that “a doctor may consider it a duty to ensure that any sexual partner is informed regardless of the patient’s own wishes.” Ultimately the court held that public interest would override the duty of confidentiality, particularly where there is an immediate or future health risk. Because of such provisions, the court upheld the action of the respondent hospital, in disclosing the HIV positive status of the appellant to the hitherto prospective wife and others to be justified.
Thus, the court, in this case, had concluded that regardless of the fact that the appellant was an HIV positive patient, the disclosure of the fact would not qualify to be a violation of either the clause of confidentiality or an encroach of his right to privacy because here Ms Y to whom the appellant could have been married could be saved in time due to the disclosure otherwise she would have been a victim of this dreadful disease if the marriage took place and had it be consummated.
Justice K.S.Puttaswamy and Ors. v. Union of India and Ors. case
When we talk about the evolution of privacy rights in India, the Justice Puttaswamy case cannot be left to discuss. The facts of this case lie with the issue of linkage of Aadhar card details and whether it violated the right to privacy or not. The case, brought by retired High Court Judge Puttaswamy, challenged the uniform biometrics-based identity card that the government had proposed which would be made mandatory for availing government services and benefits. This was the first judgment that dealt with the issue of privacy as a part of a fundamental right as a wide concept.
A nine-judge bench sat to decide on the matter and anonymously held that the right to privacy is a legitimate right that all citizens shall enjoy, and the right emanates from Article 21 of the Constitution of India. The Court reasoned that privacy is an incident of fundamental freedom or liberty guaranteed under Article 21 which provides that: “No person shall be deprived of his life or personal liberty except according to the procedure established by law”.
This is a landmark case that would likely raise issues and questions on constitutional challenges to a wide range of Indian legislation, for example, legislation criminalizing same-sex relationships as well as bans on beef and alcohol consumption in the many Indian States. The stakeholders now also expect the Indian Government to establish a data protection regime to protect the privacy of the individual.
Over the years, the issue of privacy has always been argued. In earlier cases, the Judiciary failed to include the Right to Privacy as a Constitutional Right. The Judges felt that the right to privacy is an International Concept and is foreign to the country. However, Justice K.S. Puttaswamy’s judgment was a landmark in this regard which held that the Aadhar Card is not necessary as it is a breach of privacy and the right to privacy is an integral part of the Constitution guaranteed under Article 21 of the Constitution.
Provisions to protect data in digital health
At the National level, the Ministry of Health and Family Welfare (MoHFW) is the regulatory body. Digital health requires to store and analyze the data and medical history of the patients which is a piece of sensitive information that needs to be protected. This is Sensitive Personal Data or Information (“SPDI”) under the Data Protection Rules. The patient whose data is being collected needs to give consent in writing, and the patient should also be informed of the body-corporate or intermediator who is collecting the data. Even while transferring the data, the consent of the patient needs to be taken into consideration. If the patient or its consensual SPDI is planned to be disclosed to a third party, prior permission of the patient is to be obtained. Adequate security practices should also be ensured when the SPDI is being transferred by the body corporate.
Right to Health v. Right to Privacy
According to the Judiciary, the theory of “emanation” invokes Article 21, where the conflict of the two fundamental rights, that is, the right to privacy and the right to health of another person arises. The argument lies when one of them needs to be given priority over the other.
So the person suffering from AIDS needs to be given the basic fundamental rights, which shall also include his keeping of the status of the disease out of the public discussion. Article 21 guarantees him non-discrimination and dignified life, while Article 19 guarantees him the confidentiality of his sensitive information. However, on the other hand, the person who wishes to get sexually intimate with the person with AIDS has the right to know their partner’s medical condition along with the right to health.
In this situation, courts of law always rely on the utilitarian principle. Bentham proposed this principle of utilitarianism where whenever the government needs to lay down some policies or actions, it needs to be done considering the greatest good for the greatest number of people. So the courts decide such matters on a case-to-case basis aiming to provide the maximum good and welfare to society.
Right to Privacy v. Directive Principles of State Policy
Sometimes the conflict that arises is the State’s duty to reveal information of a person under the gape of public interest and the person’s right to protect such sensitive information or data. The issue of prioritizing one of them becomes important. In this section, we shall see the conflicting ideas regarding the fundamental right and the DPSPs through case laws.
In the case of R K Dalmia v. Justice Tendulkar, the court held that Directive Principles of State Policy are important in realizing the goals of the Constitution; the same should not override the fundamental rights guaranteed to the people.
Article 37 of the Constitution of India provides that though directive principles are fundamental in the governance of the country, they are expressly made non- justiciable. On the other hand, fundamental rights are enforceable by the Courts, and the courts are bound to declare as void any law that is inconsistent with the fundamental rights.
In the case of State of Madras v. Champakam Dorarirajan, the court held that the Directive Principles have to conform and run as a subsidiary to the fundamental rights and in case of any conflict between fundamental rights and directive principles, fundamental rights would prevail.
On the other hand, in the case of Keshavananda Bharti v. State of Kerala, the court held that the Directive Principles of State Policy supplement the Preamble, which comprises the basic structure of the constitution. These principles have been characterized as basic to our social order, as they seek to build a socially just society. Courts must strive to give such an interpretation as will promote the match and the progress towards a socialist democratic state. Many rights have been compromised and diluted from time to time to enforce these principles.
In the case, V. Markandeya v. State of A.P the court held that the fundamental rights and Directive Principles constitute true conscience and without faithfully implementing the Directive Principles it is not possible to achieve the welfare state as contemplated by the Constitution.
Since the arguments balance on both sides, it could be well established that the courts decide these kinds of sensitive cases on their own merits along with the principle of utilitarianism.
Even though there are no comprehensive laws on the rights of AIDS patients in India, the judiciary over the years has done a magnificent job in interpreting their rights through landmark cases. The issues that took up a lot of time to decide on were whether AIDS patients have a right to privacy regarding their HIV positive status, whether they have a right to marry and whether that right is absolute or not, and whether doctors have a legal obligation to disclose the HIV positive status to the concerned person and so on. The Apex Court of India has timely dealt with such questions and came up with appropriate and creative solutions.
In April 2017, the government through Bills stressed equality among people and equal opportunity at work and other things. It aimed to cancel out discrimination at the workplace, and provide that even an AIDS patient has the right to employment. It tries to promote the right of the dignity of all human beings and asks to curb the stigmas already associated with it. Everyone including AIDS patients must be treated with equality, and the law tries to cast the same notion.
The judgments and laws also implicitly remind Indian legislators that laws dealing with divorce in India, such as the Hindu Marriage Act, 1955, the Indian Divorce Act, 1869, the Special Marriage Act, 1954, and the Parsi Marriage and Divorce Act 1936, need to be amended to explicitly include AIDS as one of the grounds for divorce Such amendments are needed as it also provides rights to the innocent spouses who have a higher risk to get affected by the infection.
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